James H. Smith

Updated 4:14 pm, Monday, July 21, 2014

It's a big question really. Why would seven judges decide that the police can keep information about crime secret from the American public? That is essentially what the state Supreme Court did July 7.

Before becoming supreme court justices, four of the seven who decided the case were either prosecutors or city attorneys, one was an FBI agent -- species not prone to informing the public. The justice who wrote the 27-page opinion, Richard Robinson, (there are no concurring or dissenting opinions) worked as a city lawyer for Stamford Mayor Dan Malloy.

On the 27th page of Commissioner of Public Safety vs. Freedom of Information Commission, Justice Robinson writes that the issue should be "squarely on the radar of the legislature" and he suggests that open government advocates should "pursue appropriate legislative remedies."

Fine, but on the way, the justices decided to reverse some 20 years of precedence in Freedom of Information Commission decisions on what the police must tell the public. If you think the answer lies in legislation, then why write an opinion that reduces what citizens can know about crime? Just hold off and let the Connecticut General Assembly wrestle with the issue.

The court acknowledged that supporters of the FOIC (known as amici) pointed out that police blotter information doesn't generally reveal the race of someone arrested, which could shed light "on law enforcement practices that disproportionately target minorities."

Why stop there, Justice Robinson seemed to say. "The same interest might extend to information showing that an arrestee is an undocumented alien, or that individuals were exercising rights of free speech or assembly when arrested, or that an arrestee had an extensive criminal history, or . . . is in a position of public trust . . . or how a killer acquired weapons," he wrote.

Well yes, these are the kind of things the public would want to know. "Indeed, information of this kind is at least sometimes provided by the police," Robinson rejoined. Yes, sometimes, but not under his ruling.

He thinks the question "is not whether it should be disclosed, but whether the decision about disclosure should be vested in the police or" someone else. This court thinks it is up to the police. Bad decision.

There are two seemingly contradictory sections of the state FOI laws. What the court did, essentially, was decide in favor of the section that allows law enforcement agencies to withhold all kinds of information. Section 1-215 initially required police to reveal only the name and address of the person arrested; the date, time and place of the arrest; and the offense. The Supreme Court in 1993 affirmed this law.

So the legislature amended it in 1994 requiring police to release more, in the form of "at least one of the following, designated by the law enforcement agency, the arrest report, incident report, news release, or other similar report of the arrest of a person."

This court decided that 1-215 "exclusively governs law enforcement agencies' disclosure obligations" and trumps the other FOI statute (1-210 ) which calls for "broader disclosure obligations."

So, no mugshots, no nothing, unless the cops put it in a "press release" that they write.

What is this court thinking? For one thing, according to Justice Robinson, "we deem plausible" the FOI Commission's arguments and "we also find reasonable" the state police department's position. So what to do? You check out the legislative history.

Here is where these seven justices erred. They found in the 1994 legislative debates "a very limited response" to the high court's narrow view in its 1993 decision on what police need to release. In fact, the legislature voted to require much more information from the police -- a narrative, a report; not just name, rank and serial number.

Having convinced themselves of tiny action by the legislature, the court then went on to marginalize the more expansive section of the FOI law, even though state statute 1-215 clearly states that "disclosure of data or information . . . shall be subject to the provisions of 1-210 (b) (3)." This court's reasoning then dwindles to pure brewed bunkum.

Section 210 is the heart of the FOI law, stating that "all records . . . shall be public records."

That is where the legislature should begin to rectify this disastrous decision.